The Public Procurement Commission: Can a member dissent? By: Mohabir Anil Nandlall, MP

The Public Procurement Commission (PPC) is a constitutional body established by Article 212 W of the Constitution. The Constitution declares that this Commission “shall be independent, impartial and shall discharge its functions fairly”. It consists of five (5) members nominated by the Public Accounts Committee (PAC) and approved by no less than two-thirds of the elected members of the National Assembly.

The functions of this Commission are manifold. They are listed in Article 212 AA. Its core functions include; monitoring and reviewing the functioning of all public procurement systems to ensure that they comply with the law; investigating complaints and cases of irregularities and proposed remedial actions; crafting and approving rules and procedures for public procurement and to monitor and review all legislation and report the need for new legislation in the area of public procurement.

Recently, the PPC completed its first major task of investigating/ reviewing an irregular public procurement transaction, that is, the controversial purchase of over $600M of pharmaceuticals and drugs for the Georgetown Public Hospital Corporation (GPHC) without the resort to any form of public procurement.

It is common knowledge that the PPC has completed its inquiry and has presented a report to the National Assembly, as it is required to do in certain special cases, under the Constitution. It is also public knowledge that one of the five members of the Commission has differed from the others in his interpretation of the events and in his findings and recommendations. It is reported in the Chronicle newspapers that he has prepared a “Minority Report”.

This has apparently caused some disquiet within the Commission. It is also reported that this dissenting opinion was not included in the report of the Commission. The reason proffered is that a dissenting opinion is not permissible.

As a result, the issue of whether a member of the Commission can lawfully and properly submit a dissenting opinion has arisen.

INTRINSICALLY INDEPENDENT

The fact that this Commission is “independent and impartial” necessarily means that outside of the Constitution, which creates it, this Commission is self-regulatory. Therefore, it can formulate its own rules of procedure to govern it. The Constitution is silent on these procedural matters. As far as I am aware, the PPC has not yet formulated any procedural regulations to govern the way it is to function. Therefore, currently, there is no prohibition against a member of the Commission expressing a dissenting opinion or preparing a report, which is inconsistent with a report of the other members.

It would be advisable that the PPC formulate its own regulations, which will guide its future work, both in terms of procedure and substance, as soon as possible. It is of fundamental importance that those rules be intra vires and consistent with the Constitution and any other law governing the PPC. If not, those regulations will be ultra vires, unconstitutional and unlawful.

Significantly, these regulations cannot be designed, either in their letter or in their spirit, to compromise or in any manner whatsoever affect or interfere with the independence and impartiality of the Commission. I must emphasize that the impartiality and independence with which the Constitution imbue this Commission is not confined to the Commission as a unitary whole but applied with equal force to each of its constituent part. What this means is that not only is the Commission as a body independent and impartial vis-a-vis extraneous influences, it is equally intrinsically independent.

Therefore, each individual member of the Commission is independent of the other and is entitled to hold views and opinions which are independent of other Commissioners. In other words, even the chairperson has no authority to silence the view of any Commissioner; neither do four commissioners have the authority to silence the view of one. In the end, therefore, with or without regulations, a dissenting view or a minority report would be permissible.

This same principle applies in and to the Judiciary. The Judiciary is not only independent as a unitary whole against extraneous influences but each judge enjoys individual independence from other judges in the discharge of his or her judicial functions. This is the reason why in a Court comprising of more than one judges, there is sometimes a dissenting judgment. It is perfectly proper and lawful for same to obtain and this practice dates back centuries.

Therefore, any intended regulation that would attempt to prohibit a dissenting view from a member of the Commission would be unconstitutional and unlawful.

The PPC is a public body and its work is public. Regulations, which are designed to cloud the work of this Commission in secrecy, would again, run afoul of the Constitution. Like any other public organization, some aspects of its work at some particular stage may require some degree of confidentiality, but that would be more to protect the integrity of the process rather than shield its work from public scrutiny.

Save for those exceptional circumstances, the work of the PPC should be as transparent and accountable as possible. After all, a large part of its very mandate is to investigate transactions because of their lack of transparency and accountability. It would be an ironic tragedy if it is to be accused of the very wrong it was established to investigate.